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How Does a North Carolina Judge Determine Who Gets Custody?

How Are Custody Battles Decided?

First of all, a Judge would much prefer that parents work together to determine custody arrangements and parenting plans between themselves.  Child custody mediation is mandatory in hopes that parents can work out parenting plans before asking a Judge to decide.  Sometimes, before a Judge begins the custody proceeding, she will ask the lawyers or the parents to have one last conversation before the decision is out of the parent’s control.  After all, it is the parents who know best what arrangements and schedules will work for the children and for the parents.  Coming to a mutual understanding about a parenting plan allows each parent an active voice in creating a workable plan.  As soon as the Judge is asked to hear evidence and make a custody decision, the parents lose control over decisions about their child’s future.  Negotiated child custody agreements are more likely to be complied with than court-mandated parenting plans because each parent has had a hand in crafting the outcome.  

When Compromise Cannot Be Achieved.

When a Judge must hear evidence and make a custody decision, the overriding consideration, the most crucial evidence, will be what is in the child’s best interest.  The welfare of the child has always been the “the polar star” which guides the Judge in making a child custody decision.  

Best Interest of the Child.

North Carolina does not have a statute that defines what “best interest” means.  Each family unit is unique, and no black letter law definition fits every family circumstance.  Some types of evidence that can matter to your Judge, include:

  • the activities, responsibilities, and amount of time each parent spent performing caretaking functions while the family was living together.
  • the course of conduct between the parents relating to caretaking functions while they were together as a family unit.
  • the division of labor between the parents over caretaking functions, school involvement, religious education, extracurricular activity involvement, investigating resources and opportunities for the child.
  • the mental and physical health of the child, and of each parent.
  • the child’s adjustment to home, school, and community.
  • the child’s relationship to each parent.
  • the child’s relationship to siblings, step-siblings, step-parents, relatives, and other important individuals.
  • any special needs of a child and each parent’s ability to meet those special needs.
  • the distance between the parents’ residences, the cost and challenges of transporting the child in between homes and school.
  • the child’s daily routine and schedule, and each parent’s ability to manage the child’s routine and schedule.
  • the demonstrated ability of each parent to place the needs of the child above his or her own, and the ability of each parent to separate the child’s needs from each parent’s disagreement with the other parent.
  • the willingness and demonstrated ability of each parent to be flexible with schedules, arrangements, and access to the child.
  • the willingness and demonstrated ability of each parent to encourage the child to have a meaningful relationship with the other parent.
  • any acts of domestic violence.
  • the terms of a parent’s military family-care plan, deployment, or potential deployment.
  • the existence of any alcohol or substance abuse by a parent that has had an impact on parenting, parenting judgment, or skill.
  • any acts by a parent to interfere with the parent-child relationship between the child and the other parent or acts by a parent to resist the other parent’s access to the child.
  • involving the child in the litigation (like allowing the child to read court documents, attorney-client communications, or communication between the parents).
  • derogatory, negative, or demeaning comments by a parent in the presence of a child about the other parent.
  • the criminal record of a parent.
  • a parent’s payment, or non-payment, of child support or for child-related expenses.

This list is not exhaustive.  There are many other facts and circumstances which relate to your child and your unique family circumstances that will be important for your child custody Judge to hear.

Who Should I Have as Witnesses in my Child Custody Case?

The most important witness for your child custody Judge to hear from is you.  Be an active participant with your lawyer in presenting your best case.  Tell your lawyer in detail about your relationship with your child.  Focus on your relationship to your child and why you are a good parent and why you are able to meet your child’s needs.  Do not fall into the trap of focusing your trial time on blaming the other parent and pointing out all of that parent’s failings.  

 Sit down with your lawyer and role play.  Being a witness is a nerve-wracking experience.  Even with hours of advance preparation, you will be nervous, flustered, and anxious.  

Having other witnesses testify who know you, know your child, and who have observed you parent your child are helpful.  These witnesses are never a substitute for you; the Judge needs to hear and see you so she can form a favorable opinion about you and your abilities as a parent.

What About My Child’s Wishes?

If your child is of “suitable age and maturity,” and if you and the other parent agree, your child custody Judge may speak with your child outside of the courtroom, usually in the Judge’s chambers.  Usually, this is a private conversation and your lawyer is not allowed in the room.  

What is a “suitable age and maturity?”

Like best interest, at what age a child may speak is dependent on that specific child.  Each child is a unique person, and one 10-year old may be more mature and insightful than another 13-year-old.  The type of information that the child wishes to share, and how that child’s wishes and desires were formulated is also relevant to the inquiry of “suitable age and maturity.”  

Can a Child Be Forced to Testify in a Child Custody Case?

In North Carolina, both parents need to consent before a child custody Judge agrees to hear from the child outside of the courtroom.  If one parent refuses, the child can be sworn in, and can be examined and cross-examined in open court like any other witness.  In this instance, the motivations of the parent who refuses and causes the child to be placed in the witness box in open court will be scrutinized in minute detail.  The initial impression your child custody Judge will have of the refusing parent will be very detrimental.

Prepare for the Fight in your Child Custody Case.

Invest your time in preparing for your child custody litigation.  Be an active client and work closely with your lawyer.  Collaborate with your lawyer on identifying the kinds of evidence that will bolster the story you want to tell at your child custody hearing.  Collect documents, emails, reports, social media, statements, and whatever written materials exist to support your story.  Compile videos or pictures.  Memories fade over time so journal or keep a written record so you will remember key events and happenings.  Make a list of what you believe is in your child’s short-term and long-term best interest and start compiling evidence to support your belief.  

How Long Does It Take For a Judge to Make a Decision in a Custody Case?

This is a hard one.  A final resolution of your child custody case by a Family Court will take longer than you expect. Temporary hearings can often be heard in Court early on in the process because these hearings are limited in time and scope.  In Wake County, a temporary child custody case is limited to no more than two hours in length, one hour per side.   For permanent child custody hearings, it may take 9 months, twelve months, and even longer for your child custody case to be heard by a Judge.  You will, quite reasonably, be frustrated and irritated – at the system, at your own lawyer, at your (former) spouse, at their lawyer, witnesses, and a host of other people and institutions.  

Renew Compromise Discussions.

Compromise is difficult in child custody cases.  Parents are cemented in their beliefs and opinions about the best way to raise children.  Parents who, while living together, did not share a common parenting philosophy or often disagreed will find it remains difficult to find agreement on child custody-related issues and decisions after their separation.  But finding some middle ground and finding a way to compromise and settle a child custody dispute is most often better for your child than a courtroom battleground.  Sometimes, compromise can be reached while you are waiting for your child custody case to be heard by the Court.  Many, many months have elapsed, parents are weary of the tension and disagreements, the legal fees are mounting, and the children are hurting – these things coalesce and compromise can occur when it was impossible before.  Seize it.  Seize the opportunity.